EXHIBIT 10.15
INTEGRATED CIRCUIT SYSTEMS, INC.
EXECUTIVE STOCK PURCHASE AGREEMENT
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THIS EXECUTIVE STOCK PURCHASE AGREEMENT (this "Agreement") is made and
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entered into as of May 11, 1999 by and between Integrated Circuit Systems, Inc.,
a Pennsylvania corporation (the "Company"), and ▇▇▇▇ ▇. ▇▇▇ ("Executive").
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Executive desires to purchase, and the Company desires to sell, 135,000
shares of the Company's Class A Common and 15,000 shares of the Company's Class
L Common (collectively, the "Executive Stock") pursuant to the terms and
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conditions contained in this Agreement. Capitalized terms used herein and not
otherwise defined are defined in Section 16 hereof.
Certain provisions of this Agreement are intended for the benefit of, and
will be enforceable by, the ▇▇▇▇ Stockholders in connection with the merger of
ICS Merger Corp., a Pennsylvania corporation ("ICS"), with and into the Company
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(the "Merger") pursuant to the terms of an Agreement and Plan of Merger, dated
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January 20, 1999 (the "Merger Agreement"), between the Company and ICS.
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The parties hereto agree as follows:
1. Purchase and Sale of Common Stock. Upon execution of this Agreement,
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Executive will purchase, and the Company will sell, 135,000 shares of Class A
Common at a price of $0.22 per share and 15,000 shares of Class L Common at a
price of $18.00 per share. The Company will deliver to Executive copies of the
certificate(s) representing such shares of Executive Stock, and Executive will
deliver to the Company a Promissory Note in the form of Annex A attached hereto
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in an aggregate principal amount of $300,000 (the "Executive Note").
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Executive's obligations under the Executive Note shall be secured by a pledge of
all of the shares of Common Stock held by Executive from time to time, and in
connection therewith, Executive shall enter into a pledge agreement in the form
of Annex B attached hereto (the "Pledge Agreement").
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2. Representations and Warranties; Acknowledgments.
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(a) Representations and Warranties by Executive. In connection with the
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purchase and sale of Executive Stock hereunder, Executive represents and
warrants to the Company that:
(i) The shares of Executive Stock to be acquired by Executive
pursuant to this Agreement will be acquired for Executive's own account and
not with a current view to, or intention of, distribution thereof in
violation of the Securities Act or any applicable state securities laws,
and the shares of Executive Stock will not be disposed of in contravention
of the Securities Act or any applicable state securities laws.
(ii) Executive is an executive or director of the Company or its
Subsidiaries, is sophisticated in financial matters and is able to evaluate
the risks and benefits of the investment in Executive Stock.
(iii) Executive is able to bear the economic risk of his investment
in Executive Stock for an indefinite period of time because the Executive
Stock has not been registered under the Securities Act and, therefore,
cannot be sold unless subsequently registered under the Securities Act or
an exemption from such registration is available.
(iv) Executive has had an opportunity to ask questions and receive
answers concerning the terms and conditions of the offering of Executive
Stock and has had full access to such other information concerning the
Company and its Subsidiaries as he or she has requested. Executive has
reviewed, or has had an opportunity to review, a copy of the Merger
Agreement, and Executive is familiar with the transactions contemplated
thereby. Executive also has reviewed, or has had an opportunity to review
the Offering Memorandum related to certain of the debt financing of the
Merger, the Company's Certificate of Incorporation and the Company's Bylaws
and any credit agreements, notes and related documents to which the Company
is a party.
(v) Executive has not granted and is not a party to any proxy,
voting trust or other agreement which is inconsistent with, conflicts with
or violates any provision of this Agreement. Executive shall not grant any
proxy or become party to any voting trust or other agreement which is
inconsistent with, conflicts with or violates any provision of this
Agreement.
(vi) This Agreement constitutes the legal, valid and binding
obligation of Executive, enforceable in accordance with its terms, and the
execution, delivery and performance of this Agreement by Executive does not
and will not conflict with, violate or cause a breach of any agreement,
contract or instrument to which Executive is a party or any judgment, order
or decree to which Executive is subject.
(viii) Executive is a resident of the State of Pennsylvania.
(b) Acknowledgment by Executive. As an inducement to the Company to issue
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the Executive Stock to Executive, and as a condition thereto, Executive
acknowledges and agrees that, subject to any employment agreement between
Executive and the Company or applicable law, neither the issuance of Executive
Stock to Executive nor any provision contained herein will entitle Executive to
remain in the employment of the Company or its Subsidiaries or affect the right
of the Company to terminate Executive's employment at any time for any reason.
(c) Representations and Warranties of the Company. The Company represents
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and warrants to Executive as follows:
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(i) The Company is a corporation duly organized, validly existing
and in good standing under the laws of the Commonwealth of Pennsylvania.
(ii) The Company has all requisite corporate power and corporate
authority to execute, deliver and perform this Agreement and to consummate
the transactions provided for herein.
(iii) The execution, delivery and performance by the Company of this
Agreement and the consummation by the Company of the transactions
contemplated hereby, including, but not limited to, the issuance and sale
of the Post-Recapitalization Stock to be issued by it hereunder, have been
duly authorized, and this Agreement constitutes the valid and binding
obligation of the Company, enforceable against it in accordance with the
terms hereof.
(iv) The Executive Stock issued to the Executive hereunder, when
issued in compliance with the provisions of this Agreement, will be validly
issued, fully paid and non-assessable.
(v) As of the Closing, the authorized capital stock of the Company
will consist of (A) 27,000,000 shares of Class A Common, of which
15,612,588 shares will be issued and outstanding immediately after the
Closing, (B) 7,000,000 shares of Class B Common Stock, of which 5,653,079
shares will be issued and outstanding immediately after the Closing, and
(C) 3,000,000 shares of Class L Common Stock, of which 2,362,852 shares
will be issued and outstanding immediately after the Closing. As of the
Closing, other than options to purchase up to 5,734,333 shares of the
Company's Class A Common, options to purchase up to 137,148 shares of the
Company's Class L Common and preemptive rights to purchase shares of the
Company's capital stock granted to certain of the Company's stockholders,
there will be no rights, subscriptions, warrants, options, conversion
rights, or agreements of any kind outstanding to purchase from the Company,
or otherwise require the Company to issue, any shares of capital stock of
the Company or securities or obligations of any kind convertible or
exchangeable for any shares of capital stock of the Company; provided,
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however, that shares of Class A Common may be converted into shares of
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Class B Common and shares of Class B Common may be converted into shares of
Class A Common, all subject to the terms of the Company's Articles of
Incorporation.
3. Right to Purchase Executive Stock Upon Termination of Employment.
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(a) Repurchase Right. If the Repurchase Date occurs, the Executive Stock
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(including any Executive Stock acquired subsequent to the Repurchase Date),
whether held by Executive or one or more transferees, will be subject to
repurchase by the ▇▇▇▇ Stockholders, the Bear ▇▇▇▇▇▇▇ Stockholders, or the
Company pursuant to the terms and conditions set forth in this Section 3 (the
"Repurchase Option").
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(b) Repurchase Price. Executive Stock purchased pursuant to the Repurchase
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Option will be purchased at a price per share equal to the Fair Market Value of
such Executive Stock as of the Valuation Date.
(c) Repurchase Procedures. The Company may elect or decline to exercise
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the Repurchase Option by delivering written notice (the "Company Repurchase
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Notice") to the holder or holders of each class of the applicable Executive
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Stock, the ▇▇▇▇ Stockholders and the Bear ▇▇▇▇▇▇▇ Stockholders within the later
of the one-year anniversary of this Agreement or 240 days after the applicable
Repurchase Date. To the extent that after giving effect to the Company's option
pursuant to the immediately preceding sentence any portion of the Executive
Stock is not being repurchased by the Company, the ▇▇▇▇ Stockholders and the
Bear ▇▇▇▇▇▇▇ Stockholders may elect or decline to exercise the Repurchase Option
to purchase up to their pro rata share (determined based upon the number of
shares of Class A Common and Class B Common held by each) by delivering written
notice (the "Initial Repurchase Notice") to the Company, the holder or holders
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of Executive Stock and the other within the later of (i) 10 business days after
receipt of the Company Repurchase Notice or (ii) the expiration of the later of
one-year anniversary of this Agreement or the expiration of the 240 day period
during which the Company was entitled to deliver the Company Repurchase Notice.
To the extent that the ▇▇▇▇ Stockholders or the Bear ▇▇▇▇▇▇▇ Stockholders do not
elect to repurchase their full allotment of the remaining Executive Stock, the
other party shall be entitled to purchase all or any portion of the remaining
Executive Stock by providing written notice (the "Supplemental Repurchase
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Notice" and together with the Initial Repurchase Notice and Company Repurchase
Notice, a "Repurchase Notice") to each of the parties receiving the Initial
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Repurchase Notice within ten business days of the expiration of the period
during which the ▇▇▇▇ Stockholders and the Bear ▇▇▇▇▇▇▇ Stockholders were
entitled to deliver the Initial Repurchase Notice. Each Repurchase Notice will
set forth the number of shares of each class of Executive Stock to be acquired
from such holder(s), an estimate of the aggregate consideration to be paid for
such holder's shares of each such class of Executive Stock and the time and
place for the closing of the transaction. If any shares of any class of
Executive Stock are held by any transferees of Executive, the ▇▇▇▇ Stockholders,
the Bear ▇▇▇▇▇▇▇ Stockholders and the Company, as the case may be, will purchase
such shares of such class elected to be purchased from such holder(s) of
Executive Stock, pro rata according to the number of shares of such class of
Executive Stock held by such holder(s) at the time of delivery of such
Repurchase Notice (determined as nearly as practicable to the nearest share).
(d) Closing. Each closing of a repurchase transaction will take place on
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the date designated by the ▇▇▇▇ Stockholders, the Bear ▇▇▇▇▇▇▇ Stockholders or
the Company, as the case may be, in the latest Repurchase Notice, which date
will not be more than 60 days after the delivery of such notice, and no earlier
than any date set forth in an earlier Repurchase Notice or the final
determination of Fair Market Value per share of Executive Stock as of the
Valuation Date and the expiration of any time periods for which a repurchase
election may be revoked pursuant to Section 3(e) (the "Scheduled Closing Date").
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The Company will pay for any shares of Executive Stock to be purchased pursuant
to a Repurchase Option by delivery of cash or cashier's check payable to the
holder(s) of such shares of Executive Stock in an aggregate amount equal to
their share of the aggregate repurchase price (the "Repurchase Price"); provided
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that any purchase of the Executive
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Stock that occurs after the Scheduled Closing Date by the Company as a result of
the Financing Circumstances (as defined below) shall include simple interest
calculated from the Scheduled Closing Date to the date of such payment at the
rate of 6% per annum on the Repurchase Price attributable to such shares of
Executive Stock. The ▇▇▇▇ Stockholders and the Bear ▇▇▇▇▇▇▇ Stockholders will
pay for any shares of Executive Stock to be purchased pursuant to a Repurchase
Option by delivery of cash or cashier's check payable to the holder(s) of such
shares of Executive Stock in an aggregate amount equal to their share of the
aggregate unpaid Repurchase Price for such shares of Executive Stock.
Notwithstanding anything to the contrary contained in this Agreement, all
repurchases of shares of Executive Stock pursuant to this Section 3(d) will be
subject to applicable restrictions and covenants contained in the Pennsylvania
Business Corporation Law of 1988 and in the Company's and its Subsidiaries' debt
financing agreements. If (i) any such restrictions or covenants prohibit the
repurchase of Executive Stock hereunder which the Company is otherwise entitled
to make, (ii) the Company does not have cash availability, including
availability under its revolver, of at least $15 million on a projected basis
for the next six month period (collectively, the "Financing Circumstances") then
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the Company will not be required to make such repurchase (and may defer making
such repurchase) until it is permitted to do so under such restrictions and
covenants and until its projected cash availability is greater than $15 million
(with it being understood that the Company will make the maximum amount of
repurchases permitted and may defer making the remainder of such repurchases
until permitted to do so and it being further understood that any closing of any
such repurchase shall not occur on a date which is later than the second
anniversary of the Scheduled Closing Date). The ▇▇▇▇ Stockholders, the Bear
▇▇▇▇▇▇▇ Stockholders and the Company will receive customary representations and
warranties from each seller regarding the sale of shares of Executive Stock
solely with respect to such seller's ownership and title to Executive Stock and
capacity to transfer Executive Stock.
(e) Revocation of Repurchase Election. Notwithstanding anything contained
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in this Agreement to the contrary, if Executive objects to the Board's
determination of Fair Market Value as described in the definition of Fair Market
Value, or if the Fair Market Value of a share of Executive Stock is otherwise
determined to be an amount more than 10% greater than the per share repurchase
price for such share of Executive Stock in the Initial Repurchase Notice or
Supplemental Repurchase Notice, each of the Company, the ▇▇▇▇ Stockholders and
the Bear ▇▇▇▇▇▇▇ Stockholders shall have the right to revoke its exercise of the
Repurchase Option for all or any portion of the Executive Stock elected to be
repurchased by it by delivering notice of such revocation in writing to the
holders of the Executive Stock, the Company, the ▇▇▇▇ Stockholders and the Bear
▇▇▇▇▇▇▇ Stockholders during (i) the 30 day period beginning on the date that the
Company, the ▇▇▇▇ Stockholders and the Bear ▇▇▇▇▇▇▇ Stockholders received
Executive's written notice of objection, and (ii) the 30 day period beginning on
the date that the Company, the ▇▇▇▇ Stockholders and/or the Bear ▇▇▇▇▇▇▇
Stockholders are given written notice that the Fair Market Value of a share of
Executive Stock was finally determined to be an amount more than 10% greater
than the per share repurchase price for Executive Stock set forth in the Initial
Repurchase Notice or in the Supplemental Repurchase Notice.
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In the event that the ▇▇▇▇ Stockholders deliver a notice of revocation, the
Bear ▇▇▇▇▇▇▇ Stockholders shall be entitled to purchase all or any portion of
the Executive Stock that would otherwise have been purchased by the ▇▇▇▇
Stockholders by providing an additional Supplemental Repurchase Notice to the
holders of the Executive Stock and the Company within 10 business days after
receipt of the ▇▇▇▇ Stockholders' notice of revocation. The Company may
exercise the Repurchase Option for the remaining Executive Stock by delivering
an additional Company Repurchase Notice to the holder or holders of the
applicable Executive Stock within 10 business days of the expiration of the 10
business day period described in the preceding sentence.
In the event that the Bear ▇▇▇▇▇▇▇ Stockholders deliver a notice of
revocation, the ▇▇▇▇ Stockholders shall be entitled to purchase all or any
portion of the Executive Stock that would otherwise have been purchased by the
Bear ▇▇▇▇▇▇▇ Stockholders by providing an additional Supplemental Repurchase
Notice to the holders of the Executive Stock and the Company within 10 business
days after receipt of the Bear ▇▇▇▇▇▇▇ Stockholders' notice of revocation. The
Company may exercise the Repurchase Option for the remaining Executive Stock by
delivering an additional Company Repurchase Notice to the holder or holders of
the applicable Executive Stock within 10 business days of the expiration of the
10 business day period described in the preceding sentence.
In the event that the Company delivers a notice of revocation, the ▇▇▇▇
Stockholders and the Bear ▇▇▇▇▇▇▇ Stockholders shall be entitled to purchase
their pro rata share (determined based on the number of shares of Class A Common
and Class B Common held by each) of all or any portion of the Executive Stock
that would otherwise have been purchased by the Company by providing an
additional Supplemental Repurchase Notice to the holders of the Executive Stock
and the other party within 10 business days after receipt of the Company's
notice of revocation. To the extent that the ▇▇▇▇ Stockholders or the Bear
▇▇▇▇▇▇▇ Stockholders do not elect to repurchase their full allotment of
Executive Stock, the other party shall be entitled to purchase the remaining
Executive Stock by delivering an additional Supplemental Repurchase Notice to
the holder or holders of the applicable Executive Stock within 10 business days
of the expiration of the 10 business day period described in the preceding
sentence.
(f) Termination of Repurchase Right. The Repurchase Option granted to the
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▇▇▇▇ Stockholders, Bear ▇▇▇▇▇▇▇ Stockholders and the Company shall terminated
(to the extent not previously exercised) with respect to Executive Stock at the
earliest of (i) a ▇▇▇▇ Exit, (ii) a Qualified Initial Public Offering, or (iii)
the tenth anniversary of the Closing Date.
4. Restrictions on Transfer of Executive Stock.
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(a) Transfer of Executive Stock. Executive will not sell, pledge, transfer
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or otherwise dispose of (a "Transfer") any interest in their Executive Stock
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except (i) pursuant to and in accordance with Sections 3, 4(b), 5, 6, 8 or 10
(in connection with a Transfer by the ▇▇▇▇ Stockholders only below), (ii)
pursuant to the terms of the Registration Agreement, dated as of the date
hereof, by and between the Company and certain of its Stockholders, (iii)
pursuant to applicable laws of descent and distribution, or (iv) among
Executive's Family Group; provided, that the
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restrictions contained in this Section 4 will continue to be applicable to the
shares of Executive Stock after any Transfer of the type referred to in clauses
(iii) or (iv) above and, as a condition to any such Transfer, the transferees of
such shares of Executive Stock must agree in writing to be bound by the
provisions of this Agreement. In the case of a transfer by Executive to a member
of his Family Group, after such transfer Executive must continue to own at least
50% of his shares of Executive Stock originally owned by him on a fully diluted
basis. Any transferee of Executive Stock pursuant to a Transfer in accordance
with clause (iii) or (iv) above is herein referred to as a "Permitted
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Transferee." Upon the proposed Transfer of Executive Stock pursuant to clause
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(iii) or (iv) above, Executive or a Permitted Transferee Transferring such
Executive Stock will deliver a written notice (a "Transfer Notice") to the
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Company, which discloses in reasonable detail the identity of the Permitted
Transferee(s). Notwithstanding the foregoing, no party hereto shall avoid the
provisions of this Agreement by making one or more transfers to one or more
Permitted Transferees and then disposing of all or any portion of such party's
interest in any such Permitted Transferee.
(b) Termination of Restrictions. The restrictions set forth in Section
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4(a) will terminate upon a Qualified Initial Public Offering.
5. Unaffiliated Sale of the Company.
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(a) If the Board approves an Unaffiliated Sale of the Company (an
"Approved Sale"), then each holder of each class of Executive Stock will vote
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for, consent to and raise no objections against such Approved Sale. Each holder
of each class of Executive Stock will, to the maximum extent permitted by
applicable law, waive any dissenters' rights, appraisal rights or similar rights
in connection with such Approved Sale, and if such Approved Sale is a sale of
stock, each holder of such class of Executive Stock will agree to sell
(including, without limitation, by executing and delivering definitive
agreements with respect thereto) up to all of his or her shares of Executive
Stock on the terms and conditions approved by the Board; provided that the terms
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and conditions of such transaction applicable to each holder of a class of
Executive Stock are the same as those applicable to the ▇▇▇▇ Stockholders
holding such class of capital stock (including, subject to Section 7 below, the
price per share and the type of consideration, but excluding reasonable
investment banking and advisory fees customarily charged by the ▇▇▇▇
Stockholders and the Bear ▇▇▇▇▇▇▇ Stockholders for transactions of such type).
Each holder of Executive Stock will take all necessary or desirable actions in
connection with the consummation of the Approved Sale as requested by the Board
or the Company.
(b) If the Company or the holders of the Company's securities enter into
any negotiation or transaction for which Rule 506 (or any similar rule then in
effect) promulgated by the Securities and Exchange Commission may be available
with respect to such negotiation or transaction (including a merger,
consolidation or other reorganization), the holders of Executive Stock will, at
the request of the Company, appoint a purchaser representative (as such term is
defined in Rule 501) reasonably acceptable to the Company. If any holder of
Executive Stock appoints a purchaser representative designated by the Company,
the Company will pay the fees of such purchaser representative, but if any
holder of Executive Stock declines to appoint the purchaser representative
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designated by the Company, such holder will appoint another purchaser
representative, and such holder will be responsible for the fees of the
purchaser representative so appointed.
(c) Each of the holders of Executive Stock (if any) will bear their pro-
rata share (based upon the number of shares of Class A Common sold) of the costs
of any sale of Executive Stock pursuant to an Approved Sale to the extent such
costs are incurred for the benefit of all or substantially all holders of Common
Stock and are not otherwise paid by the Company or the acquiring party. Costs
incurred by each holder of Executive Stock on its own behalf will not be
considered costs of the transaction hereunder.
(d) The provisions of this Section 5 shall terminate upon a Qualified
Initial Public Offering.
6. ▇▇▇▇ Sale of the Company.
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(a) If a majority of the members of the Board (which, for purposes of this
Section 6, shall include any director appointed by the Bear ▇▇▇▇▇▇▇ Stockholders
pursuant to the Voting Agreement, dated as of the date hereof, by and among the
Company and certain stockholders of the Company party thereto from time to time
(the "Voting Agreement")) who are not Affiliates or designees of the ▇▇▇▇
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Stockholders (the "Non-▇▇▇▇ Directors") approve a ▇▇▇▇ Sale of the Company (an
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"Approved ▇▇▇▇ Sale"), then each holder of Executive Stock that is not an
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Affiliate of the ▇▇▇▇ Stockholders will vote for, consent to and raise no
objections against such Approved ▇▇▇▇ Sale. Each such holder of Executive Stock
will, to the maximum extent permitted by applicable law, waive any dissenters'
rights, appraisal rights or similar rights in connection with such Approved ▇▇▇▇
Sale, and in the event that such Approved ▇▇▇▇ Sale is a sale of stock, each
such holder of Executive Stock will agree to sell (including, without
limitation, by executing and delivering definitive agreements with respect
thereto) up to all of his or her Executive Stock on the terms and conditions
approved by the Non-▇▇▇▇ Directors; provided that the terms and conditions of
such transaction applicable to each holder of a class of Executive Stock that is
not a ▇▇▇▇ Stockholder or an Affiliate thereof are the same as those applicable
to the stockholder holding the largest number of shares of such class of capital
stock that is not a ▇▇▇▇ Stockholder or an Affiliate thereof (including, subject
to Section 9 below, the price per share and the type of consideration, but
excluding reasonable investment banking and advisory fees customarily charged by
the Bear ▇▇▇▇▇▇▇ Stockholders for transactions of such type). Each holder of
Executive Stock will take all necessary or desirable actions in connection with
the consummation of the Approved ▇▇▇▇ Sale as requested by the Non-▇▇▇▇
Directors, the ▇▇▇▇ Stockholders or the Company.
(b) If, in relation to an Approved ▇▇▇▇ Sale, the Company or the holders
of the Company's securities enter into any negotiation or transaction for which
Rule 506 (or any similar rule then in effect) promulgated by the Securities and
Exchange Commission may be available with respect to such negotiation or
transaction (including a merger, consolidation or other reorganization), the
holders of Executive Stock will, at the request of the Company or the ▇▇▇▇
Stockholders appoint a purchaser representative (as such term is defined in Rule
501) reasonably acceptable to the
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Company and the ▇▇▇▇ Stockholders. If any holder of Executive Stock appoints a
purchaser representative designated by the Company or the ▇▇▇▇ Stockholders, the
Company will pay the fees of such purchaser representative, but if any holder of
Executive Stock declines to appoint the purchaser representative designated by
the Company or the ▇▇▇▇ Stockholders, such holder will appoint another purchaser
representative, and such holder will be responsible for the fees of the
purchaser representative so appointed.
(c) Each of the holders of Executive Stock (if any) will bear their pro-
rata share (based upon the number of shares of Class A Common sold by
stockholders) of the costs of any sale of Executive Stock pursuant to an
Approved ▇▇▇▇ Sale to the extent such costs are incurred for the benefit of all
or substantially all holders of Common Stock not affiliated with the ▇▇▇▇
Stockholders and are not otherwise paid by the Company or the acquiring party.
Costs incurred by each holder of Executive Stock on its own behalf will not be
considered costs of the transaction hereunder.
(d) The provisions of this Section 6 shall terminate upon a Qualified
Initial Public Offering.
7. Distributions upon Sale of the Company, etc. In the event of a sale
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or exchange by the holders of Executive Stock (whether by sale, merger,
recapitalization, reorganization, consolidation, combination or otherwise) in
connection with an Approved Sale or Approved ▇▇▇▇ Sale each holder of Executive
Stock shall receive in exchange for the Executive Stock held by such holder
participating in such sale, the same portion of the aggregate consideration from
such sale or exchange that such holder would have received if such aggregate
consideration had been distributed by the Company to the holders of capital
stock of the Company participating in such sale, in complete liquidation
pursuant to the rights and preferences set forth in the Company's Amended and
Restated Articles of Incorporation as in effect immediately prior to such sale
or exchange (and assuming that the only shares of capital stock of the Company
outstanding were the shares of capital stock of the Company participating in
such sale). Each holder of Executive Stock shall take all necessary or
desirable actions in connection with the distribution of the aggregate
consideration from such sale or exchange as requested by the Company.
8. Initial Public Offering. In the event that the Board approves an
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initial public offering and sale of Common Stock (a "Public Offering") pursuant
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to an effective registration statement under the Securities Act of 1933, as
amended, the holders of Common Stock shall take all necessary or desirable
actions in connection with the consummation of the Public Offering. In the
event that such Public Offering is an underwritten offering and the managing
underwriters advise the Company in writing that in their opinion the Common
Stock structure would adversely affect the marketability of the offering, each
holder of Common Stock shall consent to and vote for a recapitalization,
reorganization and/or exchange of the Common Stock into securities that the
managing underwriters and the Board find acceptable and equitable in the
circumstances and shall take all necessary or desirable actions in connection
with the consummation of the recapitalization, reorganization and/or exchange;
provided that the resulting securities take into account the rights and
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preferences set forth in the Company's Amended and Restated Articles of
Incorporation as in effect immediately prior to such Public Offering.
9. Restrictive Legend; Additional Restriction on Transfer. Each
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certificate evidencing Executive Stock and each certificate issued in exchange
for or upon the transfer of any Executive Stock (if such shares remain Executive
Stock after such transfer) shall be stamped or otherwise imprinted with a legend
in substantially the following form:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT
TO CERTAIN RESTRICTIONS PURSUANT TO AN EXECUTIVE STOCK
AGREEMENT, DATED AS OF MAY, 1999 AMONG THE ISSUER OF SUCH
SECURITIES (THE "COMPANY") AND ▇▇▇▇ ▇. ▇▇▇, AS AMENDED AND
MODIFIED FROM TIME TO TIME. A COPY OF SUCH EXECUTIVE STOCK
AGREEMENT SHALL BE FURNISHED WITHOUT CHARGE BY THE COMPANY
TO THE HOLDER HEREOF UPON WRITTEN REQUEST."
The Company shall imprint such legend on certificates evidencing Executive Stock
outstanding as of the date hereof. The legend set forth above shall be removed
from the certificates evidencing any shares which cease to be Executive Stock in
accordance with the definition of Executive Stock set forth in Section 12
hereof.
10. Participation Rights.
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(a) If the ▇▇▇▇ Stockholders or the Bear ▇▇▇▇▇▇▇ Stockholders propose to
enter into any sale to an unaffiliated third party (including Bear ▇▇▇▇▇▇▇ or
its Affiliates in the case of ▇▇▇▇, or ▇▇▇▇ or its Affiliates, in the case of
Bear ▇▇▇▇▇▇▇) pursuant to which such party or parties acquire more than 5% of
any class of capital stock held by the ▇▇▇▇ Stockholders or Bear ▇▇▇▇▇▇▇
Stockholders in any transaction or series of transactions (excluding Public
Sales and transfers and/or distributions to partners of the ▇▇▇▇ Stockholders or
the Bear ▇▇▇▇▇▇▇ Stockholders), then the Executive will be afforded an
opportunity to participate in such transaction on, subject to Section 7 above,
the same terms and conditions as applicable to the other holders of such class
of capital stock participating in such transaction. If any stockholder other
than the ▇▇▇▇ Stockholders or the Bear ▇▇▇▇▇▇▇ Stockholders, as the case may be
(each a "Transferring Stockholder") has elected to participate in such sale, the
-----------------------
Transferring Stockholder shall be entitled to sell in the contemplated sale a
number of shares of any class of capital stock equal to the product of (i) the
quotient determined by dividing the percentage of such class of capital stock
owned by the Transferring Stockholder by the aggregate percentage of Common
Stock owned by the stockholders participating in such sale (which in the case of
a sale by ▇▇▇▇ Stockholders may include the Bear ▇▇▇▇▇▇▇ Stockholders and which
in the case of a sale by Bear ▇▇▇▇▇▇▇ Stockholders may include the ▇▇▇▇
Stockholders) and (ii) the number of shares of such class of capital stock to be
sold in the contemplated sale. Each holder of Executive Stock participating in
any such transaction will take all necessary or desirable actions in connection
with
10
the consummation of any such transaction as requested by the ▇▇▇▇ Stockholders
including without limitation executing the applicable purchase agreement.
(b) Notwithstanding the foregoing, in the event that the ▇▇▇▇ Stockholders
intend to transfer shares of more than one class of capital stock, each
Transferring Stockholder will not be entitled to participation rights pursuant
to this Section 10 unless such Transferring Stockholder and sells in the
contemplated sale a pro rata portion of shares of all such classes of capital
stock, which portion shall be determined in the manner set forth in Section
10(a).
(c) The ▇▇▇▇ Stockholders will use reasonable efforts to obtain the
agreement of the prospective transferee(s) to the participation of any
Transferring Stockholders in any contemplated sale, and the ▇▇▇▇ Stockholders
will not transfer any class of capital stock to the prospective transferee(s)
unless (i) the prospective transferee(s) agree to allow the participation of the
Transferring Stockholders or (ii) the ▇▇▇▇ Stockholders agree to purchase on the
same terms and conditions the number of such class of capital stock from any
Transferring Stockholders which such Transferring Stockholders would have been
entitled to sell pursuant to this Section 10.
11. Preemptive Rights.
-----------------
(a) Except as set forth in subsection (b) below, the Company will not
issue, sell or otherwise transfer to the ▇▇▇▇ Stockholders or the Bear ▇▇▇▇▇▇▇
Stockholders (an "Issuance") at any time prior to a Public Offering, any capital
--------
stock or debt securities (or securities convertible into or exercisable or
exchangeable for capital stock or debt securities) unless, at least 15 days
prior to such Issuance, the Company notifies each holder of Executive Stock in
writing of the Issuance (including the price, the purchasers thereof and the
other terms thereof) and grants to each holder of Executive Stock, the right
(the "Right") to subscribe for and purchase a portion of such additional shares
-----
or other securities so issued at the same price and on the same terms as issued
in the Issuance equal to the quotient determined by dividing (1) the number of
fully diluted shares of Class A Common and Class B Common held by such holder by
(2) the total number of shares of Class A Common and Class B Common outstanding
on a fully diluted basis. Notwithstanding the foregoing, if all Persons
entitled to purchase or receive such stock or securities are required to also
purchase other securities of the Company, the holders of capital stock
exercising their Right pursuant to this Section shall also be required to
purchase the same strip of securities (on the same terms and conditions) that
such other Persons are required to purchase. The Right may be exercised by such
holder at any time by written notice to the Company received by the Company
within 10 days after receipt by such holder of the notice from the Company
referred to above. The closing of the purchase and sale pursuant to the
exercise of the Right shall occur not less than 10 days after the Company
receives notice of the exercise of the Right and concurrently with the closing
of the Issuance.
(b) Notwithstanding the foregoing, the Right shall not apply to (i)
issuances of capital stock or debt securities (or securities convertible into or
exchangeable for, or options to purchase, capital stock or debt securities), pro
rata to all holders of any class of Stock, as a dividend on, subdivision of or
other distribution in respect of, such class of capital stock, (ii) conversions
or
11
exchanges of one class or form of capital stock into another class or form of
capital stock, (iii) issuances of capital stock upon exercise of any debt
security issued by the Company, or (iv) the issuance of capital stock (or
securities convertible into or exchangeable for, or options to purchase, capital
stock) on customary, arm's length terms in connection with the provision by the
▇▇▇▇ Stockholders or the Bear ▇▇▇▇▇▇▇ Stockholders of debt financing to the
Company or its Subsidiaries.
(c) The provisions of this Section 11 will terminate upon the consummation
of a Public Offering or upon a ▇▇▇▇ Exit.
12. Transfer. Prior to transferring any Executive Stock (other than a
--------
Public Sale or an Approved Sale or pursuant to Section 10) to any Person,
Executive shall cause the prospective transferee to be bound by this Agreement
and to execute and deliver to the Company a counterpart of this Agreement.
13. Definition of Executive Stock. For all purposes of this Agreement,
-----------------------------
Executive Stock will continue to be Executive Stock in the hands of any holder
other than Executive (except for the Company, purchasers pursuant to an offering
registered under the Securities Act or purchasers pursuant to a Rule 144
transaction (other than a Rule 144(k) transaction occurring prior to the time
the Company is a Public Company) and subsequent transferees), and each such
other holder of Executive Stock will succeed to all rights and obligations
attributable to Executive as a holder of Executive Stock hereunder. Executive
Stock will also include shares of the Company's capital stock issued with
respect to shares of Executive Stock by way of a stock split, stock dividend or
other recapitalization.
14. Holdback Agreement. Before and after, the effective date of any
------------------
underwritten Public Offering, no holder of Executive Stock will effect any sale
or distribution of Common Stock during the period designated by the underwriters
managing such underwritten Public Offering with respect to such holder of
Executive Stock, but in no event shall any such period following the effective
date of any such underwritten Public Offering exceed 180 days.
15. Voting Agreement. Except as otherwise provided herein, from and after
----------------
the date hereof until the provisions of this Section 15 cease to be effective,
Executive and Executive's transferees shall vote all of their Executive Stock
and take all other necessary or desirable actions within their control
(including, without limitation, attendance at meetings in person or by proxy for
purposes of obtaining a quorum and execution of written consents in lieu of
meetings) as requested from time to time by the holders of a majority of the
voting shares of Common Stock. The provisions of this Section 15 shall cease to
be effective upon the earlier of the consummation of (i) a Qualified Initial
Public Offering, or (ii) a ▇▇▇▇ Exit.
16. Definitions. The following terms are defined as follows:
-----------
12
"Affiliate" means, when used with reference to a specified Person, any
---------
Person that directly or indirectly controls or is controlled by or is under
common control with the specified Person. As used in this definition, "control"
(including, with its correlative meanings, "controlled by" and "under common
control with") shall mean possession, directly or indirectly, of power to direct
or cause the direction of management or policies (whether through ownership of
securities or partnership or other ownership interests, by contract or
otherwise). It is understood and agreed that any portfolio company in which a
▇▇▇▇ Stockholder or any other Affiliates thereof which is a private equity fund
holds in excess of 30% of the outstanding capital stock is an "Affiliate" of
such ▇▇▇▇ Stockholder for purposes of this Agreement and that any portfolio
company in which a Bear ▇▇▇▇▇▇▇ Stockholder or any Affiliate thereof that
invests primarily in equity securities holds in excess of 30% of the outstanding
capital stock is an "Affiliate" of such Bear ▇▇▇▇▇▇▇ Stockholder for purposes of
this Agreement.
"▇▇▇▇ Exit" means (i) a sale of all or substantially all of the
---------
consolidated assets of the Company to any Person other than the ▇▇▇▇
Stockholders or their Affiliates or (ii) the transfer or other disposition of
capital stock to any Person after giving effect to which the ▇▇▇▇ Stockholders
and their Affiliates own less than 5% of the outstanding shares of capital stock
of the Company and any capital stock received in connection with an Organic
Change (as hereinafter defined) (in each case, whether by merger, consolidation,
sale of the Company's capital stock or otherwise).
"▇▇▇▇ Sale of the Company" means (i) a sale of all or substantially all of
------------------------
the consolidated assets of the Company to one or more of the ▇▇▇▇ Stockholders
or their Affiliates, or (ii) the transfer or other disposition to the ▇▇▇▇
Stockholders or their Affiliates of outstanding shares of capital stock of the
Company (in each case, whether by merger, consolidation, sale of the Company's
capital stock or otherwise) such that after giving effect to such transfer the
▇▇▇▇ Stockholders and their Affiliates own all or substantially all of the
outstanding shares of the Company's capital stock (in each case, whether by
merger, consolidation, sale of the Company's capital stock or otherwise).
"▇▇▇▇ Stockholders" means the Persons listed on the signature pages hereto
-----------------
as ▇▇▇▇ Stockholders.
"Bear ▇▇▇▇▇▇▇ Stockholders" means the Persons listed on the signature pages
-------------------------
hereto as Bear ▇▇▇▇▇▇▇ Stockholders.
"Board" means the Company's Board of Directors.
-----
"Cause" means (i) the commission of a felony, (ii) the commission of fraud
-----
having an adverse effect on the Company or any of its Subsidiaries or any of
their directors or shareholders, (iii) any material act or omission involving
dishonesty having an adverse effect on the Company or any of its Subsidiaries or
any of their directors or shareholders, (iv) gross negligence or willful
misconduct with respect to the Company or any of its Subsidiaries or substantial
failure to otherwise perform duties as reasonably directed, in any such case
described in this clause (iv), for thirty days after written notice from the
Board and an opportunity to cure.
13
"Class A Common" means the Company's Class A Common, par value $.01 per
--------------
share.
"Class B Common" means the Company's Class B Common Stock, par value $.01
--------------
per share.
"Class L Common" means the Company's Class L Common Stock, par value $.01
--------------
per share.
"Common Stock" means, collectively, Class A Common, Class B Common, Class L
------------
Common and any other common stock authorized by the Company.
"Exchange Act" means the Securities Exchange Act of 1934, as amended from
------------
time to time.
"Executive Stock" means (i) all shares of Executive Stock referred to in
---------------
the recitals hereto and (ii) all shares of Common Stock issued with respect to
the shares referred to in clause (i) above by way of stock dividend or stock
split in connection with any conversion, merger, consolidation or
recapitalization or other reorganization affecting the Common Stock.
"Fair Market Value" of each share of Executive Stock means the average of
-----------------
the closing prices of the sales of the appropriate class of Common Stock on all
securities exchanges on which such class of Common Stock may at the time be
listed, or, if there have been no sales on any such exchange on any day, the
average of the highest bid and lowest asked prices on all such exchanges at the
end of such day, or, if on any day such Common Stock is not so listed, the
average of the representative bid and asked prices quoted in the NASDAQ System
as of 4:00 P.M., New York time, or, if on any day such Common Stock is not
quoted in the NASDAQ System, of the average of the highest bid and lowest asked
prices on such day in the domestic over-the-counter market as reported by the
National Quotation Bureau Incorporated, or any similar successor organization,
in each such case averaged over a period of 21 days consisting of the day as of
which the Fair Market Value is being determined and the 20 consecutive business
days prior to such day. If at any time such class of Common Stock is not listed
on any securities exchange or quoted in the NASDAQ System or the over-the-
counter market, the Fair Market Value will be the fair value of such class of
Common Stock determined in good faith by the Board based on such factors as the
members thereof, in the exercise of their business judgment, consider relevant
without taking into account a discount for a minority position or illiquidity
but taking into account whether the Company is a privately held company or a
public company (with it being understood that as of the day immediately
following the date hereof, the Fair Market Value for each share of Class A
Common shall be $0.22 and for each share of Class L Common shall be $18 per
share notwithstanding that the Company is a private company). If the Executive
in good faith disagrees with such determination, the Board and the Executive
will negotiate in good faith to agree on such Fair Market Value. If such
agreement is not reached within 30 days after the delivery of the Company
Repurchase Notice, the Initial Repurchase Notice or the Supplemental Repurchase
Notice, Fair Market Value shall be determined by an independent and unaffiliated
appraiser (which shall be one of Valuation Research, BT ▇▇▇▇ ▇▇▇▇▇, Broadview
14
Associates or ▇▇▇▇▇▇ ▇▇▇▇▇▇▇) selected by the Board, which appraiser shall be
instructed to submit to the Board and the Executive a report within 30 days of
its engagement setting forth such determination. The first $7,000 of the
expenses of such appraiser shall be borne by the Executive (and the remainder
shall be borne by the Company) unless the appraiser's valuation is at least 25%
greater than the amount determined by the Board, in which case, the costs of the
appraiser shall be borne by the Company. In the absence of manifest error, the
determination of such appraiser shall be final and binding upon all parties.
Notwithstanding the foregoing, to the extent that the Company has determined
Fair Market Value through an independent and unaffiliated appraiser at any time
within the six month period prior to Executive's Termination Date, the Fair
Market Value set forth in such appraisal shall conclusively be deemed to be
"Fair Market Value" hereunder and shall be binding upon all parties hereto,
unless the Board, in its good faith discretion determines that acquisitions,
divestitures or other material events consummated during such six-month period
affect the valuation set forth in such appraisal.
"Family Group" means a Participant's spouse and descendants (whether
------------
natural or adopted) and any trust solely for the benefit of such Participant
and/or such Participant's spouse and/or descendants (natural or adopted) of
Participant and any corporation, limited liability company, partnership or other
entity the equity holders of which solely include such Participant, his or her
spouse or descendants (natural or adopted) or any trust for the benefit of such
Participant, his or her spouse or descendants (natural or adopted).
"Independent Third Party" means any Person who, immediately prior to the
-----------------------
contemplated transaction, does not own in excess of 5% of the Common Stock on a
fully diluted basis, who is not controlling, controlled by or under common
control with any such 5% owner of the Common Stock and who is not the spouse or
descendant (by birth or adoption) of any such 5% owner of the Common Stock.
"Organic Change" means any recapitalization, reorganization,
--------------
reclassification, consolidation, merger, sale of all or substantially all of the
Company's assets or other transaction which is effected in such a way that
holders of Common Stock are entitled to receive (either directly or upon
subsequent liquidation ) stock, securities or assets with respect to or in
exchange for Common Stock.
"Person" means an individual, a partnership, a corporation, a limited
------
liability company, an association, a joint stock company, a trust, a joint
venture, an unincorporated organization, a governmental entity or any
department, agency or political subdivision thereof or any other entity or
organization.
"Public Company" means a company any of whose securities are registered
--------------
pursuant to Section 12(b) or 12(g) of the Securities Exchange Act.
15
"Public Sale" means any sale of Common Stock to the public pursuant to an
-----------
offering registered under the Securities Act or to the public through a broker,
dealer or market maker pursuant to the provisions of Rule 144 (other than Rule
144(k) prior to the time the Company is a Public Company) adopted under the
Securities Act.
"Qualified Initial Public Offering" means the initial sale by the Company
---------------------------------
of any class or classes of the Common Stock in an offering registered under the
Securities Act of 1933, as amended from time to time, other than an offering
made solely in connection with a business acquisition or combination or an
employee benefit plan, but only if the aggregate gross proceeds received by the
Company and/or its stockholders in such initial sale or series of such sales in
the aggregate are in excess of $50 million.
"Repurchase Date" means the date that Executive ceases to be employed by
---------------
the Company for any reason.
"Sale of the Company" means (i) a ▇▇▇▇ Sale of the Company, or (ii) an
-------------------
Unaffiliated Sale of the Company.
"Securities Act" means the Securities Act of 1933, as amended from time to
--------------
time.
"Subsidiary" means, with respect to any Person, any corporation,
----------
partnership, limited liability company, association or other business entity of
which (i) if a corporation, a majority of the total voting power of shares of
stock entitled (without regard to the occurrence of any contingency) to vote in
the election of directors thereof is at the time owned or controlled, directly
or indirectly, by that Person or one or more of the other Subsidiaries of that
Person or a combination thereof, or (ii) if a partnership, limited liability
company, association or other business entity, a majority of the partnership or
other similar ownership interest thereof is at the time owned or controlled,
directly or indirectly, by that Person or one or more Subsidiaries of that
Person or a combination thereof. For purposes hereof, a Person or Persons shall
be deemed to have a majority ownership interest in a partnership, limited
liability company, association or other business entity if such Person or
Persons shall be allocated a majority of partnership, limited liability company,
association or other business entity gains or losses or shall be or control the
managing director, managing member, manager or a general partner of such
partnership, limited liability company, association or other business entity.
"Unaffiliated Sale of the Company" means (i) a sale of all or substantially
--------------------------------
all of the consolidated assets of the Company to any Person other than the ▇▇▇▇
Stockholders or their Affiliates, or (ii) the transfer or other disposition to
any Person other than the ▇▇▇▇ Stockholders or
16
their Affiliates of more than 50% of the outstanding shares of capital stock of
the Company (in each case, whether by merger, consolidation, sale of the
Company's capital stock or otherwise).
"Valuation Date" shall mean (i) with respect to any Repurchase Option, the
--------------
date, if any, that the Company delivers a Repurchase Notice to a holder of
Executive Stock or (ii) with respect to any Put Right, the date, if any, that
the holder(s) of Executive Stock deliver a Put Notice to the Company.
17. Notices. Any notice provided for in this Agreement must be in writing
-------
and must be personally delivered, received by certified mail, return receipt
requested, or sent by guaranteed overnight delivery service, to the Investors at
the addresses indicated in the Company's records and to the other recipients at
the address indicated below:
To the Company:
Integrated Circuit Systems, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: President
With copies to:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP
3000 Two ▇▇▇▇▇ Square
▇▇/▇▇/ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
and
▇▇▇▇ Capital, Inc.
Two ▇▇▇▇▇▇ Place
Boston, Massachusetts 02116
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Yoo ▇▇▇ ▇▇▇
and
17
ICST Acquisition Corp.
c/o Bear, ▇▇▇▇▇▇▇ & Co. Inc.
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
and
▇▇▇▇▇▇▇▇ & ▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, P.C.
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
and
▇▇▇▇▇▇▇▇ & ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
To Executive:
at Executive's last address
on the records of the Company
or such other address or to the attention of such other person as the recipient
party will have specified by prior written notice to the sending party. Any
notice under this Agreement will be deemed to have been given when so delivered
or mailed.
18. Severability. Whenever possible, each provision of this Agreement
------------
will be interpreted in such manner as to be effective and valid under applicable
law, but if any provision of this Agreement is held to be invalid, illegal or
unenforceable in any respect under any applicable law or rule in any
jurisdiction, such invalidity, illegality or unenforceability will not affect
any other provision or the effectiveness or validity of any provision in any
other jurisdiction, and this Agreement will be reformed, construed and enforced
in such jurisdiction as if such invalid, illegal or unenforceable provision had
never been contained herein.
19. Complete Agreement. This Agreement embodies the complete agreement
------------------
and understanding among the parties and supersedes and preempts any prior
understandings, agreements
18
or representations by or among the parties, written or oral, which may have
related to the subject matter hereof in any way. Without limiting the foregoing,
all executive stock and stock option agreements between the Company and
Executive which existed immediately prior to the Merger are hereby canceled and
terminated.
20. Counterparts. This Agreement may be executed in separate
------------
counterparts, each of which will be deemed to be an original and all of which
taken together will constitute one and the same agreement.
21. Successors and Assigns; Transfer. This Agreement is intended to bind
--------------------------------
and inure to the benefit of and be enforceable by Executive and the Company and
their respective successors, heirs and assigns, provided that Executive may not
assign any of his rights or obligations, except as expressly provided by the
terms of this Agreement. Prior to transferring any shares of Executive Stock
(other than in a Public Sale or any Approved Sale) to any person or entity,
Executive will cause the prospective transferee to execute and deliver to the
Company an agreement containing the rights and restrictions set forth herein
with respect to such shares of Executive Stock.
22. Governing Law. The corporate law of the Commonwealth of Pennsylvania
-------------
will govern all questions concerning the relative rights of the Company and its
stockholders. All other issues concerning the enforceability, validity and
binding effect of this Agreement will be governed by and construed in accordance
with the laws of the Commonwealth of Pennsylvania, without giving effect to any
choice of law or conflict of law provision or rule that would cause the
application of the law of any jurisdiction other than the Commonwealth of
Pennsylvania.
23. Remedies. The parties hereto acknowledge and agree that money damages
--------
may not be an adequate remedy for any breach of the provisions of this Agreement
and that any party hereto will have the right to injunctive relief, in addition
to all of its other rights and remedies at law or in equity, to enforce the
provisions of this Agreement.
24. Effect of Transfers in Violation of Agreement. The Company will not
----------------------------------------------
be required (a) to transfer on its books any shares of Executive Stock which
have been sold or transferred in violation of any of the provisions set forth in
this Agreement or (b) to treat as owner of such shares of Executive Stock, to
accord the right to vote as such owner or to pay dividends to any transferee to
whom such shares of Executive Stock have been transferred in violation of this
Agreement.
25. Amendments and Waivers. Any provision of this Agreement may be
----------------------
amended or waived only with the prior written consent of the Company (with
approval of the Board) and Executive; provided that Sections 3, 5, 6, 10, 30 and
-------- ----
31 are for the express benefit of the ▇▇▇▇ Stockholders and/or the Bear ▇▇▇▇▇▇▇
Stockholders and there shall be no amendment to (or other amendment to the
Agreement which has the effect of amending) any of Sections 3, 5, 6, 10, 30 and
19
31 or this Section 25 in a manner adverse to the ▇▇▇▇ Stockholders without first
obtaining the written consent of the ▇▇▇▇ Stockholders or in a manner adverse to
the Bear ▇▇▇▇▇▇▇ Stockholders without first obtaining the written consent of the
Bear ▇▇▇▇▇▇▇ Stockholders, as applicable
26. Expenses. The Company agrees to pay, and hold Executive harmless
--------
against liability for the payment of his reasonable fees and expenses arising in
connection with the preparation and execution of this Agreement and the other
agreements, documents and instruments contemplated hereby and thereby, and the
consummation of the transactions contemplated hereby and thereby.
27. Offset. Whenever the Company or any of its Subsidiaries is to pay any
------
sum to Executive or any Affiliate or related person thereof, any amounts that
such Executive or such Affiliate or related person owes to the Company or any of
its Subsidiaries may be deducted from that sum before payment.
28. Further Assurances. Executive shall execute and deliver all
------------------
documents, provide all information, and take or refrain from taking such actions
as may be necessary or appropriate to achieve the proposes of this Agreement.
In addition, in connection with any Sale of the Company structured to achieve
pooling of interest accounting treatment, Executive will take such reasonable
actions as requested by the Board as required to achieve and maintain pooling of
interest accounting treatment.
29. Deemed Transfer of Executive Stock. If the ▇▇▇▇ Stockholders, the
----------------------------------
Bear ▇▇▇▇▇▇▇ Stockholders and/or the Company shall make available, at the time
and place and in the amount and form provided in this Agreement, the
consideration for the Executive Stock to be repurchased in accordance with the
provisions of this Agreement, then from and after such time, the person from
whom such shares are to be repurchased shall no longer have any rights as a
holder of such shares (other than the right to receive payment of such
consideration in accordance with this Agreement), and such shares shall be
deemed purchased in accordance with the applicable provisions hereof and the
Bain Stockholders, the Bear ▇▇▇▇▇▇▇ Stockholders and the Company, as the case
may be, shall be deemed the owner and holder of such shares, whether or not the
certificates therefor have been delivered as required by this Agreement.
30. Rights Granted to the Bain Stockholders, the Bear ▇▇▇▇▇▇▇ Stockholders
----------------------------------------------------------------------
and their Affiliates. Any rights granted to the Bain Stockholders, the Bear
--------------------
▇▇▇▇▇▇▇ Stockholders and their Affiliates hereunder may also be exercised (in
whole or in part) by their designees (which may be Affiliates).
31. Certain Transactions with Bain. Following the date of the consummation
------------------------------
of the Merger, (i) the Company will not effect a Sale of the Company to a
portfolio company of the Bain Stockholders, and (ii) the Company will not, and
the Company will not permit any of its Subsidiaries to, agree to consummate (or
consummate) any non-material transaction other than on an arms-length
20
basis or otherwise enter into or consummate any material transaction whether or
not on an arms-length basis with the Bain Stockholders or their Affiliates other
than pursuant to agreements entered on or prior to the date hereof or agreed
upon by the Non-Bain Directors, in each case unless such transaction has been
approved by the Non-Bain Directors (which for purposes of this Section 31 shall
include the approval of any director appointed by the Bear ▇▇▇▇▇▇▇ Stockholders
pursuant to the Voting Agreement).
32. Construction. References herein to this Agreement, or any other
------------
agreement shall be a reference to such agreement as amended, modified,
supplemented or waived from time to time.
* * * * *
21
IN WITNESS WHEREOF, the parties hereto have executed this Executive Stock
Agreement on the day and year first above written.
INTEGRATED CIRCUIT SYSTEMS, INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇
---------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇
Its: President
/s/ ▇▇▇▇ ▇. ▇▇▇
-------------------------------------
▇▇▇▇ ▇. ▇▇▇
[Signature Page to Executive Stock Purchase Agreement]
with respect to paragraphs 3, 5, 6, 10, 25, 30 and
--------------------------------------------------
31 only:
--------
BAIN STOCKHOLDERS:
-----------------
▇▇▇▇ CAPITAL FUND VI, L.P.
By: ▇▇▇▇ Capital Partners VI, L.P.
Its: General Partner
By: ▇▇▇▇ Capital Investors VI, Inc.
Its: General Partner
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Its: Managing Director
BCIP TRUST ASSOCIATES II
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------
[Signature Page to Executive Stock Purchase Agreement]
with respect to paragraphs 3, 5, 6, 10, 25, 30 and
--------------------------------------------------
31 only:
--------
BAIN STOCKHOLDERS:
-----------------
BCIP TRUST ASSOCIATES II-B
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
------------------------------
BCIP ASSOCIATES II
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
------------------------------
BCIP ASSOCIATES II-B
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
------------------------------
[Signature Page to Executive Stock Purchase Agreement]
with respect to paragraphs 3, 5, 6, 10, 25, 30 and
--------------------------------------------------
31 only:
--------
BCIP ASSOCIATES II-C
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
------------------------------
PEP INVESTMENTS PTY LTD.
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
------------------------------
[Signature Page to Executive Stock Purchase Agreement]
with respect to paragraphs 3, 5, 6, 10, 25, 30 and
--------------------------------------------------
31 only:
--------
BAIN STOCKHOLDERS
-----------------
▇▇▇▇▇▇▇▇ STREET PARTNERS II
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
------------------------------
Its:
------------------------------
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇, ▇.▇.▇.
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
------------------------------
Its:
------------------------------
[Signature Page to Executive Stock Purchase Agreement]
with respect to paragraphs 3, 5, 6, 10, 25, 30 and
--------------------------------------------------
31 only:
--------
BEAR ▇▇▇▇▇▇▇ STOCKHOLDERS:
-------------------------
ICST ACQUISITION CORP.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
------------------------------
Its:
------------------------------
[Signature Page to Executive Stock Purchase Agreement]
Annex A
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PROMISSORY NOTE
[Attached hereto]
Annex B
-------
PLEDGE AGREEMENT
[Attached hereto]